Precautionary Measures and Decisions on Unsecured Precautionary Measures

This article primarily addresses the subject of precautionary measures, their conditions, the type of decisions a court can make upon request, situations where the applicant for precautionary measures is required or not required to deposit a guarantee, objections, and compensation lawsuits arising from wrongful precautionary measures. Additionally, the decisions of foreign courts on precautionary measures are also discussed under subheadings, apart from the Turkish judiciary.

What are Precautionary Measures?

Precautionary measures are temporary legal measures aimed at preventing potential damages to the legal status of the plaintiff and/or defendant during the litigation period until the court's final judgment in a future lawsuit or an ongoing case. These measures are important tools for providing definite legal protection.

The purpose of precautionary measure decisions is to prevent possible damages to the rights and claims of the parties in a lawsuit during lengthy legal proceedings, thus safeguarding the rights of the entitled until a final judgment is established. Therefore, a precautionary measure is not a final judgment; it is a type of legal tool intended to protect rights or prevent the loss of rights.

Precautionary measures are generally regulated between articles 389 and 399 of the Code of Civil Procedure No. 6100, as well as in special laws concerning precautionary measures.

For example, Article 159 of the Industrial Property Law No. 6769 regulates the scope of precautionary measures that can be requested in case of infringement of industrial property rights.

Another example is Article 637/3 of the Turkish Civil Code No. 4721, which allows a legal or appointed heir to file a claim for entitlement lawsuit against a person holding the estate or some estate goods, asserting their superior right in inheritance. The judge, upon the plaintiff's request, can take all necessary measures for the protection of the right, such as requiring the defendant to provide a guarantee or registering an annotation in the land registry. The measures that can be taken upon request in this lawsuit have the nature of precautionary measures.

And as the last example related to this topic, according to Article 72/2 of the Enforcement and Bankruptcy Law No. 2004, the court handling the negative declaratory action filed before the enforcement proceedings can issue a decision on the suspension of the enforcement proceeding as a precautionary measure against a guarantee not less than fifteen percent of the claim upon request. In this case, if special conditions for the issuance of a precautionary measure decision are stipulated in the specific law, or if there is a procedure for what kind of precautionary measure decision will be made, the court requested for the measure will issue a precautionary measure decision according to the procedure stipulated in the special law, not according to the procedure envisaged in the Code of Civil Procedure No. 6100.

In cases where there is no provision in the special law where the precautionary measure is regulated, the general provisions of the Code of Civil Procedure No. 6100 related to precautionary measures will be applied.

Special laws may contain provisions regarding precautionary measures, as well as provisions that prohibit the issuance of precautionary measure decisions. The Constitutional Court has ruled that legal provisions prohibiting the issuance of precautionary measure decisions are not unconstitutional.

Why are Precautionary Measures Necessary?

A precautionary measure is a type of legal protection. Considering the length of legal proceedings in our country, it becomes clear that such measures are essential to prevent the difficulty, impossibility, or damage due to delay in obtaining a right during the litigation process.

Due to the benefits they provide in securing rights, decisions on precautionary measures hold a significant place in our procedural law and are of great importance to the parties involved in judicial processes.

Conditions for Precautionary Measures

Article 389/1 of the Code of Civil Procedure No. 6100 regulates the reasons for which a precautionary measure can be decided and its subject. Although the expressions in the article are abstract and general, the law's choice to define the conditions for precautionary measures in such abstract terms stems from the legislator's intention to grant the judge broad discretion in this matter. The reason is to ensure justice according to the specifics of each case.

The conditions for precautionary measures ARTICLE 389- (1) A decision on precautionary measures can be made in cases where there is a fear that obtaining the right will become significantly difficult or entirely impossible due to a change in the current situation, or where harm or serious damage is expected due to delay. (2) The provision of the first paragraph is applicable to non-contentious judicial matters as far as it is suitable for its nature.

The changes in the current situation referred to here involve disputes between parties or changes over the subject matter of litigation or rights. Examples include the transfer of the disputed item during the lawsuit or its destruction or damage. In these cases, even if one party wins the lawsuit, they may not be able to obtain their right or fully achieve it if the subject of the dispute has been transferred to someone else.

According to article 389/1 of the Code of Civil Procedure No. 6100, a decision on precautionary measures can also be made in cases where there is a fear of harm or serious damage due to delay. In these cases, the objective of a precautionary measure, which may be taken from the filing of the lawsuit to the judgment, is to prevent potential harm or serious damage to one (or both) of the parties.

For instance, in a lawsuit for alimony, the alimony creditor might have no income or insufficient income for subsistence. In this case, the creditor will face financial difficulties during the lawsuit. The damage can be prevented by a precautionary measure in the form of temporary alimony to be paid during the lawsuit.

Another example is if there is a dispute regarding the validity of expelling a partner from a company or removing their authorities, a precautionary measure can be decided to act according to the former situation during the lawsuit. If the expulsion is deemed invalid, this measure will prevent potential damages.

According to article 389/1 of the Code of Civil Procedure No. 6100, a decision on precautionary measures can be made regarding the subject of the dispute. Therefore, the disputed item or right that forms the subject of litigation will also constitute the subject of the precautionary measure. A precautionary measure cannot be made regarding an item or right that is not (or has not been) the subject of a lawsuit. However, the 7th Civil Chamber of the Court of Cassation in a decision dated 20.12.2012, has accepted that precautionary measures can also be made regarding matters directly related to the subject of the dispute. (Court of Cassation 7th Civil Chamber, E.2012/8142, K.2012/9597, dated 20.12.2012)

Circumstances for a Precautionary Measure Decision

When a court decides on a request for a precautionary measure, it may issue different types of measures based on the specific circumstances of the case. Examples of these measures include:

Preserving the subject property or right,
If necessary, entrusting the aforementioned property and rights to a custodian,
Ordering a particular action (behavior, deed, etc.) to be taken,
Ordering that a particular action not be taken.

These examples are also listed in the law. Additionally, the law provides judges with discretion by stating that "any measure that eliminates the concern or prevents damage can be ordered." Therefore, judges are not limited to the types of measures listed in the law.

Procedure for Obtaining a Precautionary Measure Decision

Request for Precautionary Measure

A request for a precautionary measure can be made separately at the competent court where the main case will be filed before the main lawsuit is initiated. It can also be made together with the main lawsuit petition. However, in cases initiated solely for a precautionary measure request before the main lawsuit, if the request is granted, a deadline is set for filing the main lawsuit. If the lawsuit is not filed within this period, the precautionary measure decision will be revoked.

The party

requesting the precautionary measure must have legal standing and interest in the matter. If there is no legal interest, the court should reject the request.

In the context of precautionary measure proceedings, especially when requested before filing a lawsuit, the parties are referred to as the 'applicant for the precautionary measure' and the 'opposite party'.

Request for Precautionary Measure ARTICLE 390- (1) Precautionary measures, before a lawsuit is filed, are requested from the court competent for the main subject matter; after the lawsuit is filed, they can only be requested from the court where the main case is being heard. (2) In cases where urgent protection of the applicant's rights is necessary, the judge may decide on the measure without hearing the opposite party. (3) The applicant for the measure must clearly state in their petition the reason and type of the precautionary measure they are relying on and approximately prove their rightfulness regarding the essence of the case.

According to Article 390/3 of the Code of Civil Procedure No. 6100, a precautionary measure is requested through a petition, which must contain specific information as outlined in the same article. The applicant must clearly state in their petition the reason and type of the precautionary measure they are relying on and approximately prove their rightfulness regarding the essence of the case.

If a precautionary measure is requested before filing a lawsuit, the petition for such a measure is subject to a filing fee. This fee is fixed and varies between peace (sulh) civil courts and first instance (asliye) civil courts. A fixed decision and verdict fee will also be charged irrespective of the type of court.

If a precautionary measure is requested during an ongoing lawsuit, a separate petition is submitted, similar to the pre-lawsuit situation, and both a filing fee and a decision and verdict fee are charged.

If a precautionary measure is requested together with the lawsuit petition, only a single set of fees for filing the lawsuit, including the decision and verdict fee (fixed and/or proportional, as applicable), will be charged.

If a precautionary measure is requested together with the lawsuit petition, the request for the precautionary measure must be decided upon first. A decision on the essence of the case cannot be made without first deciding on the precautionary measure.

Obligation to Provide Security for Requesting Precautionary Measures

According to Article 390/3 of the Code of Civil Procedure No. 6100, the court does not need to be fully convinced of the applicant's rightfulness to issue a precautionary measure. Two key features of precautionary measures are that the judge can decide without hearing the opposing party and that approximate proof is sufficient.

Given that approximate proof is sufficient for issuing a precautionary measure, this can potentially cause harm to the opposing party or third parties. To compensate for possible damages that the opposing party or third parties might suffer, Article 392 of the Code of Civil Procedure requires the party requesting the precautionary measure to provide security. The purpose of this security is to cover potential damages that the opposing party and third parties may incur if the applicant for the precautionary measure is found unjustified. This provision anticipates security not only for the opposing party but also for third parties who might be affected by the measure. To implement the precautionary measure decision, the applicant must supply this security and deposit it at the location designated by the court.

According to Article 87/1 of the Code of Civil Procedure No. 6100, the court freely determines the form and amount of the security. In this case, the judge will assess the form and amount of the security based on the conditions of each specific case and specify this in the decision. However, if the parties have agreed on the form of security through a contract, it will be determined accordingly. The security required from the applicant is not limited to the costs of the lawsuit but should consider all potential damages arising from the wrongful application of the precautionary measure.

The judge may decide to increase or decrease the amount of security upon request, considering changes that occur during the lawsuit and after hearing the parties' opinions. Although the judge must set security to cover all potential damages that the opposing party or third parties might incur due to wrongful precautionary measures, the amount should not be so high as to eliminate the applicant's opportunity for urgent legal protection.

Competent Court for Requesting Precautionary Measures

Based on the rules in the Code of Civil Procedure No. 6100, the opportunity for courts handling private law matters to issue a decision on precautionary measures exists only in cases where the essence of the dispute that leads to the request for precautionary measures falls within the judicial jurisdiction of these courts. Therefore, courts within the judicial branch of civil law can only issue precautionary measure decisions regarding cases pertaining to civil law, not administrative law. Similarly, administrative courts cannot issue precautionary measure decisions in private law disputes.

Decision on Request for Precautionary Measure

Decision to Deny the Request for Precautionary Measure

According to Article 391/3 of the Code of Civil Procedure, the decision to deny a request for a precautionary measure must be reasoned and can be appealed. If, upon examination, the court finds that the conditions for a precautionary measure are not met or have not been proven to the extent required by law, the judge must issue a reasoned decision to deny the precautionary measure. The legal recourse in this situation is an appeal to the regional court of justice, and the decision made upon this appeal is final. Once the regional court of justice also denies the request for a precautionary measure, no further appeal is possible.

Decision to Grant the Request for Precautionary Measure

According to Article 391/1 of the Code of Civil Procedure, the measures to be ruled upon in a precautionary measure decision are demonstrated by way of example. The legislator has opted not to definitively list precautionary measures but instead to illustrate them by example. This is because it is not feasible to create regulations that encompass measures for every situation and specific case. The judge is granted broad discretion.

The precautionary measure decision includes the following:

The name, surname, and residence of the applicant, their legal representative (if any), and their attorney, and the name and residence of the opposing party, along with the applicant's Turkish Republic identity number.
The clear and concrete reasons and evidence on which the measure is based.
A clear description of what is being ordered and what type of measure is being decided.
The amount and type of security the applicant must provide.

The legislator has tasked the court not only to issue a general decision on the precautionary measure but also to explain and specify the reasons in connection with the subject matter of the dispute. By clearly explaining the reasons for the measure and its type in the decision, the court will facilitate the implementation of its decision and demonstrate that the rights of the opposing party are not being violated.

As stated in Article 397, Paragraph 2, of the Code of Civil Procedure, the effect of a precautionary measure decision continues until the final decision is finalized, unless otherwise specified. However, the possibility of lifting the measure due to changes in circumstances after the measure decision is also mentioned in Article 396 of the Code of Civil Procedure.

The implementation of the measure decision must be requested within one week from the date it is issued. Otherwise, even if a lawsuit is filed within the legal period, the measure decision automatically becomes void. The implementation of the measure decision is requested from the enforcement office in the jurisdiction where the court that issued the decision is located or where the subject property and rights of the measure are located. The court clerk can also be assigned to implement the measure, as specified in the court decision.

If a precautionary measure is decided before a lawsuit is filed, the related lawsuit must be filed within two weeks. If not filed within this period, the measure decision again becomes void automatically.

Temporary Legal Protection Measures in Disputes Involving Foreign Elements as per Supreme Court Decisions

When parties choose foreign courts or arbitration outside the jurisdiction of the Turkish judiciary for their disputes, they may sometimes need to obtain a temporary legal protection order in Turkey to secure the eventual outcome of the dispute.

According to Supreme Court decisions and doctrinal discussions, in cases where parties have agreed on the jurisdiction of foreign courts or the existence of arbitration agreements, they can request temporary legal protection from Turkish courts, provided the conditions mentioned in the legislation are met. For these temporary legal protection decisions from Turkish courts to be effective, complementary directives must be fulfilled. Otherwise, these decisions automatically become void.

Looking at the precedent decisions of the relevant chambers of the Supreme Court:

In the decision of the Supreme Court 19th Civil Chamber, dated 12.06.2008, case number 2008/4717 E., 2008/6504 K.:

"...Temporary legal protection measures should be applied equally to everyone, without distinction of citizenship, in line with the interests of justice and social peace. The fact that Turkish courts are deprived of jurisdiction in the main case by a jurisdiction agreement does not prevent the Turkish court from issuing a precautionary attachment order as a temporary legal protection measure."

In the decision of the Supreme Court 11th Civil Chamber, dated 21.04.2005, case number 2004/4309 E., 2005/4022 K.:

"...The purpose of the enforcement decision is to enable judgments related to legal cases in foreign countries, which have become final according to the laws of those states, to be executed in Turkey. Therefore, for a precautionary attachment regarding a claim established by a decision of a foreign court or arbitration panel, it is not necessary to seek the enforcement of the foreign decision."

As understood from these decisions, it is possible to request and obtain positive results from Turkish courts for temporary legal protection measures in disputes involving foreign elements.

Decision on Precautionary Measure Without Security Requirement

According to Article 392/1 of the Code of Civil Procedure No. 6100, the judge may exempt the applicant for a precautionary measure from providing security. Under this provision, if the request for a precautionary measure is based on an official document or other conclusive evidence, or if the situation and conditions require it, the court may decide not to require security, provided that the reasons for this are clearly stated. The judge is granted discretion depending on the nature and content of the document. For example, in alimony cases, a precautionary measure for payment of alimony can be ordered without requiring security. It is important to note that when the court exempts the applicant from providing security, it must clearly state the reasons for doing so. Additionally, individuals benefiting from legal aid are not required to provide security when requesting a precautionary measure (Article 392/1, Paragraph 3 of HMK).

Appeal Against Precautionary Measure Decision

The possibility of deciding on a precautionary measure without hearing the opposing party does not mean a complete disregard of the right to a legal hearing. In cases where a decision is made without hearing the opposing party, the right to appeal is granted. This appeal opportunity ensures the exercise of the right to a legal hearing. Here, the right to a legal hearing is not eliminated but rather postponed until after the decision on the precautionary measure. Since the right to a legal hearing is a fundamental judicial right that cannot be waived, in normal proceedings, parties are properly summoned and heard before a decision is made. However, in temporary legal protection requests, a decision can first be made without hearing the opposing party, followed by providing an opportunity to appeal.

As such, the right to a legal hearing is temporally postponed to after the precautionary measure decision through the appeal process. Appeals against precautionary measure decisions are regulated under Article 394 of the Code of Civil Procedure No. 6100. Unless otherwise decided, an appeal does not suspend the enforcement of the measure.

This provision primarily grants the right to appeal to the party against whom the precautionary measure decision is made. If the party against whom the measure is taken is present during its implementation, they may appeal to the court that issued the decision within one week after the service of the record of implementation regarding the conditions of the measure, the court's jurisdiction, and the security.

Third parties whose interests are clearly violated by the implementation of the decision can also appeal the conditions of the measure and the security within one week after learning about the precautionary measure. Appeals are made via a written petition. The appellant must clearly state the reasons for the appeal and attach all the evidence supporting their appeal. The court summons the involved parties for a hearing and, if they do not attend, makes a decision based on the file.

Following an appeal, the court may alter or lift the measure decision. The decision on the appeal can be further appealed, which is prioritized for review and resolved definitively. An appeal does not suspend the implementation of the measure.

Compensation Lawsuit Arising from Precautionary Measure

(Unjust Precautionary Measure Compensation Lawsuit)

A precautionary measure decision is often made without a thorough examination, with approximate proof deemed sufficient, and frequently without hearing the opposing party, due to its nature and purpose. Consequently, there is a possibility that the court's decision to grant a precautionary measure might be unjustified.

Under Article 399/1 of the Code of Civil Procedure, if it is determined that the party who requested the precautionary measure is unjustified in the final judgment, they are obliged to compensate the party against whom the unjust precautionary measure was ordered.

The conditions for a compensation lawsuit arising from a precautionary measure are determined based on the provisions of unjust acts in the Turkish Code of Obligations No. 6098; however, fault is not a condition in these lawsuits as the liability is a no-fault liability.

Specifically, the party requesting the precautionary measure must have been found unjust in their request or the measure must have been lifted upon appeal. The party against whom the precautionary measure was ordered must have suffered damage due to its implementation; this damage can be material or moral. Lastly, there must be a causal link between the unjust measure and the damage incurred.

It is important to note that the claimant will first seek compensation from the security deposited by the party who requested the precautionary measure at the time of its issuance.

According to Paragraph 2 of Article 392 of the Code of Civil Procedure, if a compensation lawsuit is not filed within one month after the final decision on the main case or the lifting of the precautionary measure, the security will be returned.

Penalty for Non-Compliance with Precautionary Measure

Individuals who do not comply with the enforcement order of a precautionary measure decision or act contrary to the measure decision can be sentenced to disciplinary imprisonment from one month to six months.

The competent and authorized court in this matter is the court that issued the precautionary measure decision if the main lawsuit has not yet been filed. If the main lawsuit has been filed, the competent and authorized court is the one where this lawsuit is being heard.